1976 Supreme(SC) 18

SUPREME COURT OF INDIA
V.R. KRISHNA IYER, R.S. SARKARIA AND S. MURTAZA FAZL ALI, JJ.
Kale and others, Appellants
Versus
Deputy Director of Consolidation and others, Respondents.
Civil Appeal No. 37 of 1968
Decided on 21-1-1976.
Advocates appeared
M/s. R. K. Garg, S.C. Agarwala and V. J. Francis, Advocates for M/s. Ramamurthi & Co. Advocates, for Appellants; Mr. B. D. Sharma, Advocate, for Respondents Nos. 4 and 5.

Headnote:

U.P. Tenancy Act, 1939 - Section 36 - U. P. Consolidation of Holdings Act, 1953 - Sections 8,9,9(1),9(2) - Registration Act – Section 17(1)(b) - Case had a rather chequered career and disputes between he parties were sometimes settled and sometimes re-opened - In order however to understand point involved in present appeal it may be necessary to enter into domain of contending claims of respective parties put forward before Revenue Courts from time to time - To begin with admitted position is that one Lachman last propositor was tenant and tenure holder of the property in dispute which consists of acres of land contained in Nos. acres of land comprising Khatas Nos - Lachman died in year 1948 leaving behind three daughters namely - was married during lifetime of Lachman and appellant No. 1 Kale is son of - Thus it would appear that after death of Lachman the family consisted of his two unmarried daughters and his married daughter s son Kale - Under U.P. Tenancy Act, 1939 which applied to parties only unmarried daughters inherit property - First round of dispute appears to have arisen soon after death of Lachman in the year 1949 when Panchayat Adalat of the village was asked to decide dispute between nephew of Lachman and appellant Kale regarding inheritance to property left by Lachman - Appear to have been parties to that dispute and Panchayat Adalt after making local enquiries held that having been married had lost her right in the estate and was also an heir so long as she was not married and after her marriage the legal heir to property of Lachman would be the appellant Kale - In year 1952 U.P. Zamindari Abolition and Land Reforms Act, 1950 was made applicable to tenure holders also. This Act was further amended on October 10, 1954 by Act 20 of 1954 by which, amongst the list of heirs enumerated under statute, "unmarried daughters" was substituted by "daughter" only - According to the appellant in this Court as also in High Court Ram Pyari respondent No. 5 was married on February 25, 1955 and thereafter the appellant filed a petition before for expunging names of respondents 4 and 5 from disputed Khatas because both of daughters having been married ceased to have any interest in property - It was therefore prayed that as appellant was sole heir to estate of Lachman under Section 36 of U.P. Tenancy Act, 1939, he alone should be mutated in respect of property of Lachman. By 1955 Naib Tahsildar accepted the contention of appellant and expunged names of respondents 4 and 5 from the in dispute and substituted the name of the appellant Kale. Soon thereafter on January 11, 1956, respondent 4 and 5, i.e. daughter of Lachman, filed an application before the Naib Tehsildar for setting aside his order 5, 1955 which had been passed behind their back and without their knowledge – Held, It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in 814 the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the persons receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. But, in our opinion, the principle can be carried further and so strongly do the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid in anticipation, future disputes which might ruin them all, and we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present - we are clearly of the opinion that the orders of the High Court as also that of Respondent No. 1 suffer from a substantial error of law resulting in serious injustice to the appellant by re-opening a dispute which had been settled almost seven to eight years before the proceedings for reopening the same were started. In not interfering to correct the clear error of law committed by Respondent No. 1, the High Court failed to exercise jurisdiction vested in it by law, and, therefore, the order of the High Court itself was legally erroneous and cannot be sustained. The contentions raised by the appellant are well founded and must prevail, while the contentions advanced by the respondent fail =- our finding that the family settlement did not contravene any provision of the law but was a legally valid and binding settlement in accordance with the law, the view of Respondent No. 1 that it was against the provisions of the law was clearly wrong on a point of law and could not be sustained. Similarly the view of the High Court that the compromise required registration was also wrong in view of the clear fact that the mutation petition filed before the Assistant Commissioner did not embody the terms of the family arrangement but was merely in the nature of a memorandum meant for the information of the Court. The High Court further erred in law in not giving effect to the doctrine of estopped which is always applied whenever any party to the valid family settlement tries to assail it. 825 The High Court further erred in not considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose, of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement - It was clearly held by the Allahabad High Court that the compromise could have been taken into consideration as a piece of evidence even if it was not registered or for that matter as an evidence of an antecedent title- Appeal allowed